Digging into the Founding Documents

Let’s start at the very beginning… 

To understand how we got to where we are today, we can begin with the founding documents: the Declaration of Independence and the Constitution (and, of course, the guys who wrote them).

Before we jump in, a quick disclaimer of sorts: this is not designed to be a detailed interpretation of each document, but rather a primer. Consider it the need-to-know historical context you can apply when forming your opinions on public policy or casting your vote. 

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The Difference Between Our Founding Documents 

We’re all familiar with the Declaration of Independence and the Constitution, the documents that formed the backbone of our country. But to evaluate their role in society today, it’s crucial to grasp the purpose of each document.

Both documents contain what I call “aspirational language” and “tactical language.” The aspirational pieces are the phrases you probably remember best from social studies class—”life, liberty, the pursuit of happiness,” “form a more perfect union,” and so on. These portions are akin to the mission statement of a company, in that everything the company does should be in line with that language. For example, we can ask ourselves if a particular decision facilitates justice and ensures domestic tranquility. 

The tactical language in each document, on the other hand, provides the nuts and bolts of executing the Founding Fathers’ vision—the how-to portion, if you will.

It’s important to make the distinction between aspirational and tactical language, because, while the founders intended the aspirational portions to hold fast over the years, the tactical language was designed to be changed as the country evolved.

The Declaration of Independence was primarily an aspirational document, capturing the ideas on which the country was founded. First written in June of 1776, the Declaration of Independence was essentially a document announcing our break from Britain. The few key snippets we recall—namely “all men are created equal,” and “life, liberty, and the pursuit of happiness”— are found in a short part right at the top of the document. The rest of it is tactical, essentially amounting to a list of grievances against Britain that aren’t relevant anymore. 

Once we achieved our independence, the founders wrote the Articles of Confederation. It was drafted in 1777 and ratified in 1781 as a document meant to delineate the new government’s functions. However, it had significant limitations. The Articles of Confederation gave the colonies most of the power, and it quickly became clear we needed a stronger central government if we wanted to unify the country. That’s where the Constitution as we know it came into play. 

The document they drafted was based on the Roman Republic, which had a legislature, senate, and so on for a few hundred years prior to its autocratic takeover. With that in mind—along with the struggles of the Revolutionary War, which ended in 1783—it was written in 1787 to avoid building yet another oppressive government. The goal was to unite the colonies, while also dispersing power.

Aside from the Preamble, which is wholly aspirational, the majority of the Constitution consists of tactical language—items designed to be altered with the times.

And whether or not they realize it, most people recognize that we would be better served by updating things to fit our current reality. Recent poll data suggests Americans think the country was founded by very smart people and that the Constitution should never be changed, since they knew what they were doing. But these are the same Americans who, according to the Pew Research Center, trust their government just 24 percent of the time.

The framers of the Constitution believed the document should be altered to reflect events and issues they couldn’t predict. Article V provides two methods for amending the Constitution, which—including the changes made via the Bill of Rights—we’ve done 27 times. Compared to other nations, this number is shockingly low. The French Constitution, for example, has already been amended 24 times since its adoption just 63 years ago.

The founders wanted to set the new country up for success. But to do that, they had to grapple with a particularly pressing issue—something we still struggle with today: major differences of opinion and perspective. That required compromise. 

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A Document Built on Compromise

Among our Founding Fathers were both moderates and radicals, each of whom had very different ideas about what the Constitution should and shouldn’t include. Many moderates believed that religion could be included as a guiding principle, primarily because so many of the colonies had been established based on religious convictions to begin with. They also believed voting should be limited to white male landowners. The radicals believed the opposite: that religion shouldn’t play a part in governance, and that the right to vote should be open to more individuals. Differing perspectives on slavery posed yet another issue that was proving impossible to reconcile¹. 

But to get things done, the parties agreed to compromise: separating church and state while limiting voting rights to white, property-owning men, and making slavery a state-based institution. Those compromises were never really resolved, and over the years, control—and the laws that have come with it—have gone back and forth. 

As an aside, it’s important to note a linguistic distinction in those founding documents: Our Founding Fathers used the word “liberty,” not “freedom.” Today, they’re used interchangeably, but their definitions differ. Freedom refers to what one can do personally. Liberty, on the other hand, is measured on a societal level, and it implies a willingness to sacrifice personal freedom for the greater good. We do have the freedom to make our own decisions, which includes the choice to participate in a government that may limit personal freedoms in the pursuit of liberty. Thus, liberty in and of itself is a compromise. 

Our Founding Fathers knew they had to compromise on major issues to make progress, and did so for the sake of liberty. That’s much different from today’s climate, in which politicians fail to come together on far smaller issues. 

In addition, many of the ways our government was set up—laws and structures meant to support a newborn nation—just don’t make sense today, like the electoral college. In other governments, many of these elements would have been changed to reflect shifts in the world around us. But because power between our local, state, and federal governments remains so diffuse, and because it’s so challenging to change the Constitution, we’ve gotten stuck with a document that no longer serves us in its current form. 

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Rational vs. Emotional 

Another major difference between then and now? Both the Declaration of Independence and the Constitution were written during a period of global enlightenment, where great thinkers were applying the tenets of science and rational thought to societal structures. During this period, reason and discourse were prized above all else, which resulted in the birth of our nation and its cornerstone documents. Today, we’re driven by something much more precarious: emotion. How did we get here? 

The political campaigns of the mid-20th Century were focused on winning the middle—the undecided voters who didn’t align with one candidate or another. To do that, candidates had to compromise on their stances, which they usually did through rational discussion. But in the 1990s, politicians like Newt Gingrich discovered that, instead of softening their positions, it was more effective to rally their base, doubling down on hardline policies and driving voters to the polls with a mix of fear and anger.

That’s where we are today. Elected officials, whose jobs are to compromise for the good of the country, are now digging in their heels under the pretense of standing firm on Constitutional ideals. In reality, they’re doing the opposite of what the Founding Fathers intended.

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Bringing a 240-Year Old Document Back to Life

Rather than changing the Constitution, we’ve relied on interpretations; workarounds; and simply looking the other way. The Supreme Court was established with just three lines in the Constitution, and without any insight as to how it should operate. Today, many of us insist that to change its current structure would be unconstitutional. 

Another conundrum? Some areas just don’t make sense anymore because they were written for a world that no longer exists. The issue of privacy—which arises in numerous ways, from Roe v. Wade to the internet—is something our Founding Fathers couldn’t have fathomed being such a big deal. The same goes for gene editing, artificial intelligence, the rights of corporations, and more. We’ve dealt with these problems by applying them to ill-fitting Constitutional provisions or ignoring the document altogether.

We’ve leaned on its statements regarding freedom of speech and religion to make our decisions and let the courts have more power—power that has decided, for instance, that corporations should simply be treated like people, able to spend and make money as they choose. 

When we think hard about this seminal document as it was written and how we’re using it today, we inevitably find ourselves with more questions than answers: Is it useful? Should we consider it a map of sorts? How do we apply it to the vital issues of our day that those Founding Fathers couldn’t have begun to address? 

Part of our struggle is due to the way we treat the Constitution: as a dead document. But that doesn’t have to be the case, especially when we know it was meant to be very much alive. 

We’re Long Overdue for a Policy Change

Our Founding Fathers knew that the compromises they had to make to get everyone to sign on wouldn’t last very long. After all, the more compromises there are in a particular system, the harder it is to survive ongoing changes in its surroundings. 

We’re long overdue for a full evaluation of the Constitution and corresponding adjustments that reflect the way the world works today—and the way we want it to work for the next 100 years. One option to do that? A Constitutional Convention. The Constitution itself states that such a meeting would allow for multiple issues to be addressed at once.  

People laugh at me when I suggest this, and rightly so. A Constitutional Convention is not likely to happen in our lifetime. And rather than convene one, my intent is to start a conversation, to help Americans understand that the Founding Fathers provided a way out of the mess we’ve found ourselves in. Further, I understand that it may take a generation or more to actually take action. 

Why so long? Many worry that we’d lose control over the Constitution and the value it continues to provide. But we must realize we’ve reached a point at which the stagnation we’re perpetuating actually presents a much higher risk than choosing to do something about it.

So, what can you do about it? Consider revisiting the Declaration of Independence and the Constitution yourself, and asking how we could embody the aspirational pieces and harness—or modify—the tactical pieces to create, as the founders put it, a more perfect union.

What’s Your Take? 

I’ve had the opportunity to share my perspective, and I’d like to offer you the same chance. Do you have a different, or more in-depth, analysis of the Constitution and its role in society right now? And if you think there’s a gap between what it says and what we need today, how would you change it? 

1. For more about how the radical and moderate Enlightenments shaped our founding, see Seth David Radwell’s American Schism: How the two Enlightenments hold the secret to healing our nation